Stay within the law

Ends do not justify the means in McAuliffe's push for Medicaid expansion

June 23, 2014

Gov. Terry McAuliffe looks frustrated and sounds angry.

He promised to expand Medicaid but found Republicans, particularly in the Virginia House, stridently opposed. He won election to strike deals but found good-faith negotiations hard to come by in Richmond. Losing a slim Democratic advantage in the Senate was the last straw.

On Friday, the governor announced he would take unilateral action to expand Medicaid under the Affordable Care Act. He believes the ends — helping thousands of Virginians without health-care coverage — justify his means.

Gov. McAuliffe is mistaken. Though we support Medicaid expansion through a limited, market-based program, it should only be accomplished through the appropriate legislative process, not executive fiat. The governor's frustration and anger do not give him license to ignore Virginia's constitution.

When he campaigned for office, Gov. McAuliffe touted himself as a man who could get things done. A prolific political fund-raiser, his strength in the back-rooms was legendary. He is the consummate wheeler-dealer who prefers business-friendly policies to political bickering.

Gov. McAuliffe's first six months in office put that reputation to the test, with no challenge bigger than the Medicaid debate. The Republican-controlled House stood fast in its opposition to expansion in any form, though a bipartisan proposal in the upper chamber led the governor to believe a compromise was possible.

The legislature adjourned without a budget for this reason. Gov. McAuliffe believed he could pressure lawmakers to pass expansion by using the absence of a budget, and the potential for a government shutdown, to bludgeon his opponents. Instead, the resignation of a Democratic senator —under curious circumstances — gave Republicans the power to pass a budget that explicitly prohibited expansion.

The governor was outmaneuvered. But he remains defiant and on Friday he cleared the way for executive action on Medicaid expansion.

It was a predictable move, one that reflects a distasteful approach popular in the White House. When Congress reaches an impasse or refuses to act —a common occurrence — President Barack Obama has taken to using executive orders to advance his agenda. It is a hallmark of the so-called "imperial presidency," which his predecessor expanded dramatically.

This is not the first attempt to expand executive authority in Virginia. We were sharply critical of Republican Ken Cuccinelli for his unilateral crusades while serving as attorney general. And we have leveled criticism at Attorney General Mark Herring for following suit with his decisions on same-sex marriage and in-state tuition for children of undocumented immigrants.

In fact, we favored Mr. Herring for office because he pledged not to use his office for policy-making ends. And we harbored reservations about Mr. Cuccinelli's gubernatorial ambition for precisely that reason.

Now it is Gov. McAuliffe who earns our criticism with his decision. And we call on him to back away from this worrisome bit of brinksmanship.

The Virginia Constitution, like the U.S. Constitution, separates government into three distinct branches, each with specifically enumerated powers. This is by deliberate design to prevent any branch of government — executive, legislative or judicial — from running roughshod over the others.

Gov. McAuliffe is the duly elected executive of the commonwealth, but the men and women who serve in the General Assembly were also selected by the people of this state. The legislative process is slow, deliberate and, yes, frustrating, but a governor should not be allowed to bypass it when he sees fit.

By continuing down this path, the governor risks an expensive and unproductive legal battle which will cost taxpayers. Our laws should be drafted in the legislature, not decided in a courtroom. Gov. McAuliffe's decision could paralyze the commonwealth for months and could scuttle any hope of cooperation in the remainder of his term.

We agree with Gov. McAuliffe that the ends are compelling. An estimated 195,000 residents are caught in a health care gap: They make too much to qualify for federal assistance through the Obamacare insurance exchanges but too little to be able to afford the plan's unsubsidized insurance rates.

But to change the law, the governor must either rally lawmakers to his side or convince voters that new legislators are needed. He cannot elect to steamroll the people's representatives when he decides the circumstances warrant.

Gov. McAuliffe lost this round, but that does not empower him to rewrite the rules.